Trying to ask for additional disclosure what should i do?

Hi, all

I need some advice in my situation. If you have experience, knowledge or similar situations you have encountered, feel free to leave it in the comments, i greatly appreciate them!

On Jan. 4th 2016, I got a ticket for going 139km/h on hwy 401. I was driving home with my friends to Ottawa from Toronto. So i got a ticket from the officer. He didnt tell me much, just told me to hand out the drivers license and issued me a ticket. I didnt say much either because it was my first time getting a speeding ticket. So i chose to fight the ticket. I did some research online knowing that i should contact the courthouse to get disclosure. So email them, and after a few months, i got an email back with the following files : the original ticket with correction of the time, an early resolution notice ( i am surprised about this, as i chose to go to trial and it says the date is in July and i never received it), the hand written notes from the police officer during that day ( i cant really read his writing, and i found that he wrote my name wrong on his notes), and also a statement of my driving history with my full name, birthdate and driver license number and such. I also got the manual for the LIDAR that the officer was using.

Before i got the disclosure, i wanted to fight the ticket by arguing that 1) the speed recorded with the LIDAR was not my speed as there was other cars around me at the time, 2) the LIDAR was not properly maintained, tested or used. With all the disclosure files i got from the courthouse, it doesnt seem sufficient to justify my points. and then i found this post on the forum http://www.ontariohighwaytrafficact.com/topic7794.html. and I did the same thing to request additional documents related to my case. my sent them an email :

Hi,

Thank you for the information, i would like to request that you provide me with all relevant information so that i can prepare a defence, and make full answer, to the charge mentioned above. Without limiting this request, i specifically ask that you include:

1) A full copy of the notes of the Officer ( including both sides of his copy of the ticket:

typed as it is not legible

an explanation for the short forms in case they occur in the officer's notes;

2) A copy of the calibration and maintenance records of the speed-measuring device used;

3) A copy of the certification of the officer's training for use of the speed-measuring device used;

5) Any witness statements ( the ones who will testify and the ones who were interviewed but will not be called to testify)

Please inform me of any information that is not being disclosed, with an explanation for such.

and a few weeks later they replied:

Unfortunately all of the additional disclosure you are requesting is not something I can request from the Officer we receive to many requests for disclosure to have the officer type his/her notes from every charge laid.

The only options that you have for this request are;

1.) to have the officer read to you the notes that he/she has handwritten before you have your trial or;

2.) seek legal advice from a paralegal or lawyer who may be able to interpret the officers notes or;

3.) complete the Motion that has been attached above the Motion date would be February 8th at 1:00pm it is recommended that you or someone on your behalf be present for the Motion date to explain why you require the Officer to type his notes, at this time the Justice of the Peace will either grant or deny your Motion for typed disclosure.

all three options are not feasible in my situation, 1.) by having the officer read to me, i wont have time to prepare for the trial 2.) i wouldnt want to go through a lawyer because i dont have to the money. 3.) i can fill out the form to go through the process, but i am not sure how likely the JP will grant my Motion. plus Ottawa is 2 hour drive away from the courthouse.

So now, i would like your opinion, in my situation what more can i do to fight my case and which option should i choose if i have to ask for more disclosure. And on the other hand, since the procedure is more time consuming than i expected, and i am a busy student with part time job and personal stuff. Do I still have the option to talk to the prosecutor, and maybe just pay a lowered fine and just end this, i am just thinking this might be better off in my situation. Any contribution is appreciated thank you in advance.

ottfarmboy wrote:

Before i got the disclosure, i wanted to fight the ticket by arguing that 1) the speed recorded with the LIDAR was not my speed as there was other cars around me at the time,

Just a quick note, this defence won't likely fly as LIDAR has a very narrow beam. This is in contrast to RADAR where the beam is very wide and it can be difficult to tell which vehicle is returning the speed reading (if there are multiple vehicles in the area)

Yes it appears to be a Laser/Lidar device. These have a sight that the officer looks thru and will target usually the license plate of the vehicle. They can not get a reliable reading if there are vehicles in the way or passing thru the beam though and they are more prone to error when handheld as opposed to being on a stand.

It would be interesting to know when the officer corrected the time on the Certificate of Offence and in his notes. Officers typically testify in Court that they made their notes "shortly after" issuing the ticket (that tends to mean as soon as the officer returns to the car or to the patrol post). If he messed up the time on the ticket and in his notes, he'd better be able to explain why the time was wrong in the first place, what caused him to realize he'd made the mistake, when he'd made it and when he corrected it. Depending on that information, he may have "opened the door" to question him on his observation skills, recording skills, etc.

Did the officer correct the time on the Certificate of Offence, or did the Prosecutor change the time, or did you?

Can you scan and post your copy of the ticket? The officer is not allowed to change anything on the certificate of offence after giving you your copy of the ticket (Notice of Offence).

If you did not correct the time, then you need to view the ORIGINAL certificate of offence to see if it was corrected by officer. If the correction was not made on the original then there is no issue, as the prosecutor probably made that note. But if the correction IS made on the original and is NOT made on your copy, then you have a fatal error. So definitley check into this.

jsherk wrote:

Did the officer correct the time on the Certificate of Offence, or did the Prosecutor change the time, or did you?

Can you scan and post your copy of the ticket? The officer is not allowed to change anything on the certificate of offence after giving you your copy of the ticket (Notice of Offence).

If you did not correct the time, then you need to view the ORIGINAL certificate of offence to see if it was corrected by officer. If the correction was not made on the original then there is no issue, as the prosecutor probably made that note. But if the correction IS made on the original and is NOT made on your copy, then you have a fatal error. So definitley check into this.

I dont have the original copy of the ticket, i mailed it out to express that i am choosing the third option which is going for a trial. the ticket copied i posted here is the court officer sent to me through email. i am not sure if its the prosecutor changed the time or the police officer.

Zatota wrote:

It would be interesting to know when the officer corrected the time on the Certificate of Offence and in his notes. Officers typically testify in Court that they made their notes "shortly after" issuing the ticket (that tends to mean as soon as the officer returns to the car or to the patrol post). If he messed up the time on the ticket and in his notes, he'd better be able to explain why the time was wrong in the first place, what caused him to realize he'd made the mistake, when he'd made it and when he corrected it. Depending on that information, he may have "opened the door" to question him on his observation skills, recording skills, etc.

that is what i thought too. i just dont know how to approach this for questioning in the court. i have never been to the court. Not sure how i can challenge the officer on that.

It's always a good idea to visit the court on a day prior to your trial just so you can see how it proceeds.

What you can do is go to the Provincial Offences Office on a day before your trial and ask then for:

- a copy of the origincal Certificate of Offence, and

- a copy of both sides of the Notice of Offence that you filed.

If the change is on BOTH then there is no issue for you to be concerned about.

If the change is ONLY on the Notice of Offence (your copy of ticket) then there could an issue.

If you can not get to the office before trial day, then on the day of trial, you can go up to the Clerk of the Court (before court starts) who is sitting in the court right in front of the judges bench with a computer and ask them if you can review the Certificate of Offence and the Notice of Offence.

jsherk wrote:

What you can do is go to the Provincial Offences Office on a day before your trial and ask then for:

- a copy of the origincal Certificate of Offence, and

- a copy of both sides of the Notice of Offence that you filed.

If the change is on BOTH then there is no issue for you to be concerned about.

If the change is ONLY on the Notice of Offence (your copy of ticket) then there could an issue.

If you can not get to the office before trial day, then on the day of trial, you can go up to the Clerk of the Court (before court starts) who is sitting in the court right in front of the judges bench with a computer and ask them if you can review the Certificate of Offence and the Notice of Offence.

what is the issue, if i go before the court start, and i see that the change is only on the notice of offence, what should i do ? and are they obligated to show me that or they can refuse to show me ? thanks for you replies

Check out a recent post here: http://www.ontariohighwaytrafficact.com ... t7933.html

A recent decision by the Court of Appeal has found that minor errors, such as the time, would not cause a defendant to be misled. And any minor variance between the officer's copy of the certificate of offence and your copy of the offence notice (ticket), such as a correction in the time, also would not cause a defendant to be misled.

So I don't think it's possible to argue anymore that this is an error that requires the ticket to be quashed, unless you can say that you have been misled or prejudiced as a result of this error.

I have been getting so busy in my life recently that i dont have time to prepare the case. weighing the goods and the bads, i would rather spend more time on my other stuff than fighting the ticket, do anyone know, Could i still choose other options, for example like paying the fine, or stalk to prosecutor even after i have got my court date? Or do i have to show up in court date in this case now? thank you for all the replies i appreciate all of them

Yes you can just go and pay the fine anytime you want and it is all over.

But I would suggest you show up to the court date though, and just ask the prosecutor if they will drop it to 15 over and that you will plead guilty to that. They may not agree to 15 over but might agree to 20 or 25 over. This will not help your insurance but will help reduce the initial fine which would be better than paying full price. In order to get the ticket reduced, you must show up for the trial date as it can not be done any other time or way.

Generally this type of offence is resolvable and it would be a shame to simply accept a conviction at the rate of speed on the ticket. A 15 over would be very unlikely. Perhaps a generic signage charge or a 29+.

jsherk wrote:

Yes you can just go and pay the fine anytime you want and it is all over.

But I would suggest you show up to the court date though, and just ask the prosecutor if they will drop it to 15 over and that you will plead guilty to that. They may not agree to 15 over but might agree to 20 or 25 over. This will not help your insurance but will help reduce the initial fine which would be better than paying full price. In order to get the ticket reduced, you must show up for the trial date as it can not be done any other time or way.

So i will get to speak to the prosecutor before the trial on court date ? or i ask for a drop on the trial ? is there a way to find out if the police officer is attending, if hes absent i the case should be closed ? how do i find out if the officer is coming. thank you

Yes you should be able to talk to prosecutor before trial. You can always ask the prosecutor if the officer is there or is coming. If officer is not there then you should ask for ticket to be withdrawn.

ottfarmboy wrote:

So i will get to speak to the prosecutor before the trial on court date ? or i ask for a drop on the trial ? is there a way to find out if the police officer is attending, if hes absent i the case should be closed ? how do i find out if the officer is coming. thank you

You should be able to speak with the prosecutor ahead of the trial. In many courts, the prosecutor either sets up a table outside the courtroom to meet with all defendants or speaks to defendants as they check in. If the prosecutor does not initiate a discussion, you should.

At a bare minimum, the prosecutor will likely ask you how you intend to plead. At that point, you could say something like "Not Guilty, but I'm prepared to plead guilty to a reduced speed of 115." He or she may accept it, may say he or she needs to speak to the police officer, may make a counteroffer or may reject your offer. Many prosecutors are happy to strike deals because they finish the list more quickly. Reducing a speed by 24 km/h is far from easy, but it's worth a shot.

There is no way of knowing in advance whether the officer will be there. These days, they almost never fail to show up. There needs to be a much more pressing matter for an officer not to be there. You should plan on the officer being there.

Zatota wrote:

At a bare minimum, the prosecutor will likely ask you how you intend to plead. At that point, you could say something like "Not Guilty, but I'm prepared to plead guilty to a reduced speed of 115." He or she may accept it, may say he or she needs to speak to the police officer, may make a counteroffer or may reject your offer. Many prosecutors are happy to strike deals because they finish the list more quickly. Reducing a speed by 24 km/h is far from easy, but it's worth a shot..

it is not uncommon for Prosecutors in the Northern Ontario courts to almost always run resolutions by the Officer involved before deciding whether or not to accept them. In central and Southern Ontario that is much less common.

OTD Legal wrote:

it is not uncommon for Prosecutors in the Northern Ontario courts to almost always run resolutions by the Officer involved before deciding whether or not to accept them. In central and Southern Ontario that is much less common.

That's exactly what happened the one time I faced a speeding trial in Muskoka. I had requested a French trial, figuring the officer wouldn't show up. Of course, I'd forgotten there's more French in Northern Ontario than in the GTA.

I had been charged with driving 100 in an 80 zone (I thought it was 90, but it happens). When I spoke with the prosecutor, I offered to plead guilty to 95. He said he'd check with the officer. He came back a few minutes later and said the officer was only willing to reduce it to 99 (wow...big break!!!). I then asked the prosecutor to ask her again and to tell her that if she said no again, I was prepared to cross-examine her all day and tie her up all day. I said my day was already shot as I'd driving up from the GTA. He told me I couldn't do that. I reminded him I could so long as my questions were relevant and non-repetitive. I also reminded him that because the officer didn't speak French, everything would take longer because of the interpreter. I told him to ensure he explained to the officer that she would be spending the day with me in court. He came back and said the officer would still only go to 99. So I told him to get ready for a long day and to suggest the officer get ready for a long day. Finally, about ten minutes before the trial, the prosecutor said he'd spoken to the officer again and she'd, at last, agreed to 95. She was clearly not happy.

Afterwards, I saw the officer outside. I don't know if she followed me or just happened to be back at her car as I was leaving. She told me it's illegal to threaten a police officer. I said, "I didn't threaten anyone. I made a promise." And I walked away.

You got lucky with the officer. Any of the coppers I know would have said bring it on.....we get paid to be in court, I couldn't give a hoot how long you keep me on the stand and the JPs I know would have shut you down pretty quickly.

My guess is the prosecutor didn't want to stay any longer than necessary and didn't want the first list to run into the second. Perhaps he persuaded her to agree. Either way, I was happy to be out of there.

Advantages of lidar over radar

Radar has wide signal beam divergence, so that an individual vehicle cannot be targeted, requiring significant operator skill, training and certification in order to visually estimate speed so as to locate an offender in a traffic stream, and offenders may use the defence that some other vehicle was offending. Radar will register the speed of any object in its field, for example a tree swaying or an airplane passing overhead.

Lidar has a narrow beam, and easily targets an individual vehicle, thereby eliminating the need for visual estimation, and records an image of the license plate at the same instant as recording the speed violation. Speed estimation takes less than half a second which together with the narrow, targeted beam results in offending vehicles having little warning even when using an evasion device. Lidar can measure the distance between vehicles to detect 'too close' (tailgating) infringements. The speed of a vehicle in the shadow of another vehicle cannot be measured

<source:wiki>

lolwut wrote:

ottfarmboy wrote:

Before i got the disclosure, i wanted to fight the ticket by arguing that 1) the speed recorded with the LIDAR was not my speed as there was other cars around me at the time,

Just a quick note, this defence won't likely fly as LIDAR has a very narrow beam. This is in contrast to RADAR where the beam is very wide and it can be difficult to tell which vehicle is returning the speed reading (if there are multiple vehicles in the area)

1- Radar can target an individual vehicle.

2-Radar will not register the speed of "any" object in its field. It most certainly won't pick up a tree swaying.

3-Lidar does not record an image of the licence plate unless that manufacture makes a camera attachment for that particular lidar (not used in Ontario to my knowledge) and it certainly doesn't measure the distance between vehicles. (It will measure the distance to a single vehicle though.

Apparently if it's on wiki it must be true!

Once the ticket is written and served, it is NOT the officers call on how to proceed. It is fully up to the prosecutor. The prosecutor does not need the officers permission to reduce it or withdraw it.

Radar can not target an individual vehicle. The beam is wide and most units now will tell you the speed of the fastest vehicle in the beam and also the speed of the strongest signal in the beam. However it can NOT tell the officer which vehicle is which. The officer must visually guess which vehicle is triggering which speed reading. Obviously if there is only one vehicle on the road, the assumption is that is the vehicle that is triggering the speed reading.

Radar works on doppler shift, so it can measure the speed of anything moving that bounces back a signal. But most radars have a minimum speed they can measure, so the object has to be moving faster than this minimum speed (usually something like 15) AND it has to bounce back a big enough signal to measured. So theoretically it is possible to measure a moving tree (swaying back and forth) but most likely it would not register as the speed would not be high enough and the bounce back signal would be too weak (signal would be dispersed/absorbed by rough surface of tree). Things like planes could definitely be measured, however there is distance limitation to how far away they can be, so this would most likely only happen if there was an airport very close by and planes were taking off and landing.

Lidar, to my knowledge, does not take a picture of the license/target although that could be theoretically possible and maybe there are some models that do that. Lidar measures the distance from the lidar unit to the target only. It can NOT measure the distance between two vehicles. Wiki is wrong.

jsherk wrote:

Once the ticket is written and served, it is NOT the officers call on how to proceed. It is fully up to the prosecutor. The prosecutor does not need the officers permission to reduce it or withdraw it.

As our friend OTD Legal pointed out, it's not uncommon for prosecutors in Northern Ontario to check with the officer first (my case was in Muskoka). I have occasionally seen prosecutors ask officers in the GTA if they agree with a proposed deal.

There's various sources for LIDAR,

not being able to post links (I got told of for that last time)

as below

"The "Distance Between Cars" feature, or DBC, is an optional feature that can be integrated into the firmware capabilities of LTI's Marksman and Ultralyte laser guns. This special operating mode is used to help enforce laws against tailgating by measuring the time and distance between two moving vehicles.

Although DBC technology has been available since 1995, up until recently it has been mostly restricted to foreign markets. However, recently this feature has gained interest in the US, and it is reportedly being used or tested in a number of US jurisdictions, including some areas of Oregon, Colorado, Arizona, New Mexico, and Tennessee.

One NHTSA research report describes the basic process required for taking a DBC measurement: "

Decatur wrote:

1- Radar can target an individual vehicle.

2-Radar will not register the speed of "any" object in its field. It most certainly won't pick up a tree swaying.

3-Lidar does not record an image of the licence plate unless that manufacture makes a camera attachment for that particular lidar (not used in Ontario to my knowledge) and it certainly doesn't measure the distance between vehicles. (It will measure the distance to a single vehicle though.

Apparently if it's on wiki it must be true!

There's several sites regarding Lidar not just wiki

jsherk wrote:

Lidar, to my knowledge, does not take a picture of the license/target although that could be theoretically possible and maybe there are some models that do that. Lidar measures the distance from the lidar unit to the target only. It can NOT measure the distance between two vehicles. Wiki is wrong.

Well I stand corrected... DBC is an available feature on some LIDAR. Learn something new everyday!